THE HOSPICE OF ST MARY OF FURNESS v MRS A HOWARD [2007] UKEAT 0646_06_1805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0646_06_1805Case No Appeal No. UKEAT/0646/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE HOSPICE OF ST MARY OF FURNESSAPPELLANTMRS A HOWARDRESPONDENT
Before
His Honour Judge J BurkeDate 18 May 2007
[1]APPEARANCES For the Appellant MR MATTHEW SMITH (Of Counsel) Instructed by: Messrs Fox Williams Solicitors 10 Dominion Street London EC2M 2EE For the Respondent MR PAUL DRAYCOTT (Of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA SUMMARY Case Management The parties in a claim under the Disability Discrimination Act agreed to instruct a joint orthopaedic expert. He concluded that there was an organic condition although he was unable to state the cause. After they had asked questions of the expert which did not satisfy them, the Respondents sought permission to have the Claimant examined by and to call their own expert. The ET Chairman refused permission, saying that it was not necessary under the DDA to establish the cause of an organic condition. Held on appeal(1) that the Chairman had failed to take into account that the Respondents wished to call expert evidence, based on the absence of any demonstrable cause for the condition, that it was not organic at all but was either not genuine or was a mental impairment (no mental impairment being relied upon). The Respondents had a more than fanciful reason for seeking their own expert; see Daniels v Walker [2000] 1 WLR 1382(2) that the Chairman had misapplied Vicary v BT [1999] IRLR 680(3) that the Chairman had failed to consider the size of the claim. HIS HONOUR JUDGE BURKE QC In this Appeal I was asked to set aside an Order of the Employment Tribunal, made by Mr Garnon as a Chairman sitting alone at Newcastle upon Tyne on 3 November 2006 and sent to the parties with written reasons on 8 November 2006 refusing to the employers, now the Appellants, the Hospice of St Mary in Furness, leave to call a medical witness, Mr Hodgkinson, FRCS in the course of the trial of the claim of the employee, Mrs Howard, against the Hospice that they had been guilty of disability discrimination and victimisation. I heard the Appeal on 1 February 2007 and informed the parties at the close of argument that, because there was another full appeal to be heard in my list on that day, I would reserve the reasons for my decision but that, in view of the urgency, I would inform them of my decision by 5 February. The parties were in fact informed on 2 February of my decision that the Appeal would be allowed; I now give my reasons for that decision.[2]By her claim Mrs Howard asserts that she was at the material time disabled by a back condition and that, in various ways, in particular by dismissing her on 7 November 2004, the Hospice were in breach of the provisions of the Disability Discrimination Act 1995. The Hospice's response is detailed and demonstrates that much of the relevant history is fundamentally in issue, in particular the reason for the dismissal.[3]Whether Mrs Howard was or was not disabled at the material time is, of course, a primary issue between the parties; a disabled person is, under Section 1(2) of the Disability Discrimination Act, a person who has a disability; and a person who has a disability is, under Section 1(1), a person who has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities. It is clear from the response that the Hospice do not accept Mrs Howard's assertion as to her medical condition; the genuineness of her complaints is very much in issue; the Hospice's case is that if she had any spinal problem at the material time, it was not such as to cause more than occasional minor symptoms; any complaint of more serious symptoms is not genuine or cannot be attributed to a physical condition. The Hospice say that her absences from work were excessive and unnecessary.[4]I need to give a little time to the history of what has occurred since Mrs Howard presented her claim and, indeed, to some extent, before she did so. Mrs Howard asserts that, having started employment for the Hospice in May 2004 as their director of nursing at a salary of £45,000 per annum, she suffered acute back symptoms a few weeks later while on leave over Whitsun. In July 2004 she received a report from a Mr Fewster, an orthopaedic consultant instructed by or through the Hospice, who told her that her problem could be related to degeneration of the vertebral facet joints and could be related to a spinal disease called Scheuermann's disease which she had suffered from the ages of 14 to 25 and of which she had experienced recurrences in 1989 and 1993. Later, in October 2004, the Hospice's Occupational Health specialist, Dr Nanavati, reported that Mrs Howard had made a full recovery (from what he described as a recent slipped disc problem) and could return to full duties; but she was dismissed shortly thereafter. An MRI scan apparently showed nothing material.[5]At or as a result of a telephone case management discussion on 19 July 2005 it was by consent ordered as follows:
"(1) (a) it is noted that the respondent continues to dispute that the claimant ever suffered a disability, that if she did so she remained a disabled person and in the alternative that any such disability had any link to her absence from work in 2004; (b) it is recognised by both parties that it is of particular importance to explore the question of any link between the claimant's Scheuermann's disease and her above absence from work; (c) to that end, the parties intend jointly to instruct a medical expert and are discussing the identity of such a person, (2) no later than noon on 9 August 2005, the parties shall identify the medical expert jointly to be instructed and shall send to the expert and to the Tribunal a jointly-drafted letter of instruction, (3) no later than noon on 9 August 2005, the parties shall inform the Tribunal of the likely timescale for a report; (4) as soon as possible after noon on 9 August 2005, the file is to be placed before a Chairman for consideration of such further orders as may be appropriate in particular a time for the preparation and disclosure of a report."
The parties identified as a joint expert Mr Frank, FRCS, in Manchester; and he was jointly instructed by what the Chairman described in his judgment as an impeccable letter of instruction. In that letter Mrs Howard's case was put forward on the basis that principally – but plainly not exclusively – her impairment was attributable to Scheuermann's disease. No doubt Mrs Howards' representatives were anxious that Mr Frank should say that she was disabled by a back condition at the material time and the Hospice's representatives were anxious that he should reach the opposite conclusion. Mr Frank's report was delayed until 15 December 2005. In his opinion section he stated that Mrs Howard had a history of intermittent attacks of back pain, and a precise diagnosis had never been established; but her symptoms were genuine and, when acute, markedly disabling. The MRI scan revealed no significant pathology – but she continued to suffer from painful spinal symptoms and stiffness in the neck with restriction of movement. He concluded at paragraphs 6.6 – 6.9 as follows:
"6.6 As far as one can see the attacks of back pain have come on sporadically without any specific provocation. 6.7 She has clearly been unfit to undertake any occupation or activity requiring awkward or repetitive bending, twisting, lifting, carrying, pushing and pulling, but has shown herself to be perfectly fit to undertake administrative duties outside the periods of acute exacerbation of her back symptoms. From the point of view of working as an administrator her neck symptoms are a nuisance but should not present a marked disability. 6.8 The documentary evidence available clearly shows the onset of the recurrence of acute low back symptoms "ten days prior to 9.6.04" and also confirm her story that she was fit to return to work as far as she and her medical advisors were concerned about August 6.9 She will continue to be prone to recurrent attacks of acute and incapacitating back pain of uncertain duration but there is no reason to suppose that future attacks will not respond to the type of treatment which she has received thus far. Consequently although further absences from work on account of her back condition are to be anticipated these are likely to be limited in time and frequency to the past levels."
[6]In an accompanying letter Mr Frank said:
"It is noted that in the early stages the claimant's condition was diagnosed as Scheuermann's disease, but there is little evidence of this condition on the available films. As previously stated there is no evidence of any precise diagnosis ever having established, and it is therefore probable that the claimant will continue to be treated symptomatically whenever she becomes subject to acute exacerbation of her symptoms. She will continue to require access to physiotherapy and remedial exercises and will require the support of her family during her acute episodes of exacerbation of her back symptoms as well as during her everyday activities, in order to protect her from straining her back. Looking through the documentation she is at no greater disadvantage on the open labour market now than she was in the Spring of 2004."
[7]In a further letter dated 16 January 2006 Mr Frank said:
"Further to previous reports the point has been raised that the issues originally quoted in the letter of instructions have not been fully addressed. It should be noted that these issues revolved around the question of Scheuermann's disease and its subsequent development. However there is little evidence of this condition being present or having been present as already indicated on 28.12.05. It would therefore seem necessary that a detailed discussion of the issues be considered and the writer would be very happy to do so over the telephone."
[8]It is, as it seems to me, plain that Mr Frank had not thus far answered all of the specific questions set out in the joint letter of instruction. On the other hand some of those questions and in particular a question as to whether Mrs Howard's impairment in 2004 had a substantial adverse effect on her ability to carry out normal day-to-day activities may have included matters which were for the Tribunal to decide on the facts; see Vicary -v- British Telecommunications Plc [1999] IRLR 680; although it should be noted that paragraph 16 of the EAT's judgment in that case sets out that a doctor should not express an opinion as to what is a normal day-to-day activity or whether an impairment is substantial, not, as was suggested before me, that a doctor should not express a view on whether the relevant impairment may have a substantial adverse effect on such activities.[9]The Hospice's solicitors, on 8 February 2006, invited Mrs Howard's solicitors to withdraw their claim on the basis that she did not have Scheuermann's disease. Mrs Howard's solicitors responded on 17 February, saying, in effect, that Mrs Howard was not relying on Scheuermann's disease but that Mr Frank's report supported her case that she had back symptoms which were genuine and, when acute, markedly disabling. They, in turn, invited the Hospice's solicitors to concede the issue of disability. It should be noted that, in the light of Mr Frank's report, Mrs Howard's solicitors in that letter put her disability case forward on the basis that her physical impairment had had a substantial adverse effect which was likely to recur; they expressly relied on paragraph 2(2) of Schedule 1 to the 1995 Act. That sub- paragraph had not been expressly relied upon originally; nor was that paragraph expressly referred to or canvassed within the questions asked of Mr Frank in the joint letter of instruction.[10]On 28 February the Hospice's solicitors complained that Mrs Howard was now relying on "an undiagnosed recurrent bad back that involves episodes of incapacity" and asked for more particulars and that the claim should be amended. The Tribunal, at a telephone case management discussion on 3 March, took the view, however, that no further pleadings were needed; and on my reading of the claim form it does not tie Mrs Howard to relying on Scheuermann's disease, as the Hospice's solicitors were suggesting. She says that she believed her symptoms might be so derived and that Mr Fewster took the same view – but I read her claim as based on her symptoms, whatever might or might not be the underlying condition or cause.[11]On 30 May the Hospice put to Mr Frank a series of questions drafted by Counsel. Mr Frank answered them on 10 June. I do not need to go through all of his answers. I draw attention to question 2 which was as follows:
"2. You say that a precise diagnosis has never been established. Is it correct to say that nothing within your area of expertise accounts for the lower back/left leg symptoms that commenced at the end of May/beginning of June 2004?"
Mr Frank's answer to this question was, in effect, that the absence of a precise diagnosis did not mean that there were no organic causes for intermittent attacks of back pain and sciatica which were occasionally encountered in the absence of any precise pathology revealed by investigation.[12]Question 5 asked Mr Frank whether his opinion that Mrs Howard's symptoms were genuine could only be justified by an expert able to explain the symptoms, by reference to his or her area of expertise. The answer to that question was "No". Question 6 was a lengthy question in the course of which Mr Frank was asked whether it would be more precise to state that, whilst Mrs Howard struck him as sincere, he could not really comment on "any incapacity she may have" other than to observe that there was no orthopaedic explanation. Again the answer to this question was "No", i.e. Mr Frank did not agree that he could not comment as an expert on incapacity in Mrs Howard's case; he did not, therefore, as invited set out a "full orthopaedic explanation for your opinion".[13]After some confusion caused by the posing of two questions numbered 6, Mr Frank answered question 7 by saying that the absence of a diagnosis did not negate an underlying orthopaedic condition in a patient who had always presented with recognisable positive clinical findings; and, in answer to question 8 he said that when examined by him i.e. on 15 December 2005, at a time when he said that she was fit to undertake administrative duties, she was not, on her own account, fit to undertake work which entailed driving 2.2 hours or more a day (a potentially important question because of the distances which Mrs Howard had to drive for the purposes of her employment by the Hospice).[14]By the time this process of questions and answers had been completed, it was mid-July 2006. The trial was fixed for 11 September; but Mrs Howard's solicitors applied for two individuals to be added as Respondents. The trial was adjourned and the date of 11 September used to deal with that application, which was, as it turned out, not pursued. However, by that time the Hospice's solicitors had consulted Mr Hodgkinson, a consultant orthopaedic surgeon who provided a report, based only on the relevant documents, on 31 August 2006; and at the hearing on 11 September they indicated their wish to have Mrs Howard examined by Mr Hodgkinson and to obtain their own full medical report. It was ordered that any application for that should be made by 25 September; and it is that application which has led to the present appeal. The trial was adjourned to 12 – 16 February 2007; in the light of the decision on this appeal which I gave to the parties immediately after the hearing before me the trial has, I assume, been further adjourned.[15]It is a potentially important part of the picture in this case that Mrs Howard's Schedule of Loss, dated 25 August 2006, seeks (of course on the basis that she establishes her claim) compensation of just under £300,000 for loss of earnings past and future, up to about £26,000 for injury to feelings and to health and aggravated damages up to £15,000. She further claims an enhancement of between 10% and 50% pursuant to Section 31 of the Employment Act 2002 because, it is said, the Hospice did not follow the statutory dismissal and disciplinary procedure set out in that Act, interest for a substantial period was also claimed. Thus the claim has an overall potential value, as put forward on behalf of Mrs Howard, in the region of £500,000. The Chairman's Decision[16]Having first set out the issue and reminding himself of the importance of having regard to the overriding objective, the Chairman at paragraphs 2 – 5 of his judgment referred to various authorities which had been cited to him and to two cases, Clennell v City of Sunderland College (unreported) and Vicary v British Telecommunications plc [1999] IRLR 680 (see above) which had not been cited. He found the recent decision of the Court of Session in Millar v Inland Revenue Commissioners [2006] IRLR 112 to be unhelpful. The propositions which he derived from the authorities can be summarised as follows:-(1) A physical impairment can be found although its cause is not established ( College of Ripon and York St John v Hobbs [2002] IRLR 185 )(2) If and as required, the Tribunal should be prepared to change a previous case management order.(3) The Court may permit one party to instruct and call its own expert after a single joint expert has reported where there is a good i.e. a not fanciful reason for that course to be adopted ( MP v Mid-Kent Healthcare NHS Trust [2002] 1 WLR 210 and Daniels v Walker [2000] 1 WLR 1382 ) The Chairman then considered Mr Smith's argument on behalf of the Hospice that Mr Frank's conclusion that there existed a physical impairment in the absence of any pathology or radiological evidence or diagnosis was unsatisfactory and concluded that Mr Frank was saying "loud and clear" that radiological examination had limitations and that, whereas there has been no surgery which would enable pathology to be visualised, it was proper to conclude, on the basis of reported symptoms, that a physical impairment existed. Mr Hodgkinson, he said, wished to tell the Tribunal not what the impairment was but what he believed to be the gravity of its effect; see paragraph 13.[17]He then concluded that Mr Hodgkinson would not be able to assist the Tribunal any further than Mr Frank had. Accordingly there was no good reason for the parties to bear the possible delay, anxiety and expense of the further medical expert when Mr Hodgkinson's view was not greatly different from that of Mr Frank. He concluded with these words:
"Having reviewed the facts I do not believe Mr Hodgkinson's evidence will assist the Tribunal any more in that task than the report already available from Mr Frank."
The Submissions[18]I do not propose to set out in detail all the submissions which were cogently addressed to me. In summary Mr Smith on behalf of the Hospice submitted as follows:-(1) The Hospice had properly agreed to a joint expert but were not bound to accept the joint expert's opinion, especially in a case in which there was no diagnosis and no record of any objective sign of organically based symptoms. The Hospice's desire to have their own medical expert was based on a reason which was plainly more than fanciful; it was necessary to explore and to call their expert as to the alternative, that there was no organic basis for the symptoms which were either not genuine or psychogenic.(2) It would not be satisfactory or just for the Hospice to be limited to cross-examination of Mr Frank; there was an important causation issue which could only fairly be addressed by evidence on both sides.(3) The Chairman had wrongly disregarded important guidelines in Millar.(4) The Chairman had not given weight to the size of the claim.(5) The Chairman had wrongly given weight to the factor of delay.(6) The Chairman should not have relied on what he had heard from a neurologist, Professor Bates, in other cases.(7) The Chairman should not have relied on the decisions in Vicary and Clennell v City of Sunderland College (EAT/0852/02) which had not been cited.[19]Mr Draycott on behalf of Mrs Howard submitted:-(1) The Hospice had to show an error of law on the part of the Chairman who was exercising a discretion; such an error could only be established if there had been a perverse decision.(2) Paragraph 11 of the Guidance on matters to be taken into account in disability cases provides that it is not necessary to consider how an impairment is caused; the Chairman had followed that guidance and, in doing so, had not committed any error of law.(3) If the symptoms were physical in nature, causation was irrelevant. There is no requirement that a physical impairment be attributed to a particular condition or illness; whether there is or is not a physical impairment in a particular case is a simple matter of fact. Accordingly, the Chairman was entitled to take the view that the Hospice's complaint as to the absence of a diagnosis or objective signs could not entitle them to adduce further evidence. Millar was not helpful and did not add to the effect of the decision in Hobbs and McNicol.v Balfour Beatty [2002] IRLR 711(4) Mr Hodgkinson had nothing to say which would undermine Mr Frank's belief in the physical origins of Mrs Howard's symptoms.(5) The Chairman was entitled to rely on his knowledge of Professor Bates' views which were consistent with paragraph 11 of the above Guidance and with the authorities. Conclusions[20]I have throughout consideration of this appeal reminded myself that the Chairman's decision was a case management decision in which he was exercising a discretion; it was fundamental that I should and I have recognised that I must not allow this appeal simply because I believe that, if I had been the Chairman, I would have reached a different decision.[21]Having applied that principle throughout, I have nevertheless concluded, as the parties have been informed, that the appeal must be allowed.[22]As will be seen, it is not necessary for me to go through all of the rivals' submissions in giving my reasons for that conclusion. I start with the principle to be drawn from Daniels v Walker (see above). In that case the Claimant sought damages for severe personal injuries sustained in a road traffic accident. The parties agreed that there should be a joint report as to the Claimant's care needs and the costs thereof; after that report had been obtained, the defendant's solicitors sought to obtain their own expert. The Court of Appeal reversed the decision of the judge at first instance and permitted the defendant to obtain such a report. Lord Woolf MR, at page 1388, said:
"In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained the joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence."
In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be more disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report. However, in this case a substantial sum of money depended on the issue as to whether full-time or part-time care was required. In those circumstances it was perfectly reasonable for the defendant, if the matter had been properly explained, to say that he would like to have the claimant examined by Miss Grindley. …. In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert's report. If questions do not resolve the matter and a party, or both parties, obtain their own expert's reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate question. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive."[23]The Chairman clearly directed himself, at paragraph 5, to apply those principles; but in my judgment his decision as to the application of that test to the circumstances of this case cannot be sustained.[24]There is nothing surprising in the proposition that spinal and other symptoms of which a Claimant complains may be found to have a physical or organic origin even though there is no radiological or other objective evidence of their precise cause and no precise diagnosis. It is open to an orthopaedic consultant or a neurologist to reach the view that a patient's spinal symptoms are organically derived even though he does not know how or why they have arisen. This is a situation commonly found in personal injury litigation; and the application of the proposition, where the issue is whether there is physical impairment for the purposes of the Disability Discrimination Act 1995, is emphasised by paragraph 11 of the Guidance to which the parties referred in their submissions and by the absence from the Disability Discrimination Act, as it was at the relevant time, of any provision that a physical impairment must result from or consist of a clinically well recognised illness, in contrast to the provision that a mental impairment must so result in paragraph 1(1) of Schedule 1 of the Act (now repealed but in force at the relevant time in this case).[25]While it might perhaps have been more technically sound if the Chairman had referred the parties to his knowledge of the views of Professor Bates, I do not regard his failure to do so as an error of law; the principle I have just set out is well known and did not need to be supported by Professor Bates.[26]However, it does not follow that a party seeking to resist a claim which is based on physical impairment, where there is no diagnosis and no radiological or other objective evidence of the cause of the symptoms complained of, should not be permitted to challenge the application of that principle in the individual case. The Hospice correctly agreed to a joint medical report knowing only that, according to the claim form, Mrs Howard claimed to have a history of spinal symptoms, that Mr Fewster had said that her condition in 2004 could be related to Scheuermann's disease and that Dr Nanavati regarded her in October 2004 as having recovered from a recent slipped disc problem. They did not know that Mr Frank would reach the conclusions he did. When Mr Frank's report came down on the side of a physical cause for Mrs Howard's symptoms, without any radiological or other objective support and without any clear diagnosis, they again, correctly in my judgment, – and as envisaged in Daniels v Walker – sought clarifications through questions. The answers to the questions confirmed the absence of any precise diagnosis, that, in Mr Frank's view, it was not necessary to explain those symptoms (see question 5) and that Mr Frank adhered to his view, despite the questions, that this was a case of physical or organically based symptoms. It does not seem to me to be in the least surprising that, in those circumstances and having regard in particular to the very substantial potential size of this claim, to which I have referred earlier, the Hospice decided to seek a report from their own orthopaedic consultant.[27]There was the further development to which I have referred in setting out the history in this case whereby Mrs Howard's case, after Mr Frank's views were known, was put forward on the basis of paragraph 2(2) of Schedule 1 to the Act.[28]The Hospice first obtained what can only be regarded as a preliminary view from Mr Hodgkinson; for he had not examined or spoken to Mrs Howard. In his letter of 31 August 2006 Mr Hodgkinson expressed the view that Mrs Howard suffered only from intermittent low back symptoms which: "…should not reduce her ability to carry out normal everyday activities including lifting, bending and carrying." and that there was only minor underlying degenerative disease. If that view were correct, then symptoms which did reduce her ability to carry out normal everyday activities could not be physically derived. The Hospice's desire, in these circumstances, to have Mrs Howard examined by Mr Hodgkinson, to obtain from him a full report and, if there were still outstanding issues after a discussion between Mr Hodgkinson and Mr Frank, to call Mr Hodgkinson could not, in my judgment, reasonably be seen as based on fanciful reasons. As I understand it, the Hospice were not seeking to dispute the principle supported by the views of Professor Bates in any general sense; what they were seeking to show, relying on Mr Hodgkinson's preliminary indication, was that in this case Mrs Howard was not suffering from a physical impairment such as would cause a substantial or long term adverse effect on her ability to carry out normal everyday activities. The case they wished to advance was that, beyond the low level symptoms described by Mr Hodgkinson, Mrs Howard's symptoms were either not genuine or psychogenic in origin.[29]While it may well be correct that, if there is a physical impairment which has that effect, the precise cause of that impairment does not need to be established, it was in my judgment open to the Hospice to seek to put forward their case in the manner which I have just summarised. In Hobbs (see above) the EAT, presided over by Lindsay J, dismissed the employers' appeal against the Tribunal's decision that the Claimant had a physical impairment. It is important that the employers did not contend that she had a mental impairment or that her evidence as to her symptoms or what she was able or unable to do was untrue; see paragraphs 18 and 19. The medical evidence before the Tribunal from Dr Bates (as he then was) was that:
"There is no organic disease process causing the symptoms described by Doctor Hobbs and her disability is not therefore organic."
The Tribunal found that "physical impairment" means:
"there is something wrong with the body as opposed to the mind"
[30]The EAT held, at paragraph 34, that the evidence of the symptoms and their effects, which was unchallenged, was sufficient, absent anything to contrary effect, to allow the Tribunal to conclude, as they did, that there was physical impairment within the meaning of the Disability Discrimination Act; see paragraph 34. Attention was drawn, at paragraphs 36 and 37, to the absence of any evidence that there was no physical impairment; Dr Bates had not been called at the trial and was not, therefore, questioned on his report. The EAT said at paragraph 37:
"Less doubt would have surrounded Dr Bates's meaning had he been available to supplement or explain his written report and it may be that had a consultant psychiatrist given evidence a different picture would have emerged. Unfortunately, the decision to persist with a hearing on 14 March 2000, a hearing without Dr Bates and without psychiatric evidence, left the tribunal, when it came to making its decision, having to make the best it could of the inadequate material which earlier rulings had procured should be laid in front of it. However, limiting ourselves to what is truly the question before us, we cannot, in the circumstances we have described, find error of law in the tribunal's conclusion. Accordingly we dismiss the appeal."
[31]Hobbs was, therefore, a case in which, unlike the present case, no evidence that there was not a physical impairment was sought to be adduced.[32]In McNicol there was no evidence before the Tribunal of any organic physical pathology to establish the physical organic injury which formed the foundation of the claim; and the Claimant did not advance a case that his back pain was the result of or consisted of a clinically well-recognised mental illness or was caused by functional overlay; see paragraph 6 of the judgment of the Court of Appeal. The Tribunal found, on the hearing of the preliminary issue, that Mr McNicol did not have a disability within the 1995 Act. His appeals to the EAT and Court of Appeal were rejected. The Tribunal accepted the evidence of a consultant spinal surgeon that Mr McNicol's continuing symptoms were not the result of physical impairment. Mr McNicol's appeals failed because the Tribunal had made no error of law. In his judgment Mummery LJ, with whom the Vice-Chancellor and Wall J agreed, said this at paragraphs 16 – 18:
"16 Conclusion In my judgment, only two general points are worth making. This appeal highlights the crucial importance (a) of applicants making clear the nature of the impairment on which the claim of discrimination is advanced and (b) of both parties obtaining relevant medical evidence on the issue of impairment. As happened in this case, a directions hearing should be held by the chairman of the tribunal to clarify the issues and to ascertain the nature of the evidence which the parties intend to adduce. 17 The approach of the tribunal should be that the term 'impairment' in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a 'clinically well-recognised illness'. Apart from this there is no statutory description or definition of physical or mental 'impairment'. The Guidance issued under s.3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states in the introduction section in Part 1 that 'it is not necessary to consider how an impairment was caused' and some examples of physical and mental impairment are given (eg sensory impairments affecting sight or hearing), but no general definition or description of 'impairment' is attempted. 18 I agree with the recent observations of Lindsay J in College of Ripon & York St John v Hobbs [2002] IRLR 185 at paragraph 32: 'Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness – Schedule 1 para 1(1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the tribunal's ability, so familiar to tribunals in other parts of discrimination law, to draw inferences…"
And at paragraph 19 he continued as follows:
"19 It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of 'impairment'. The essential questioning in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under s.3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence. The decision of the employment tribunal in this case is consistent with the approach and does not contain any error of law."
[33]It can be seen that in McNicol , as in Hobbs , the Claimant did not put forward a case based on mental impairment; the difference between the two cases is that in McNicol there was express evidence, which was accepted, that there was no physical impairment.[34]In Millar the Claimant asserted that he was disabled by symptoms of photophobia and ptosis which he attributed to a fall. It was accepted that his account of his symptoms was credible; but the medical evidence did not establish any physical cause for the symptoms. As in McNicol and Hobbs mental impairment was not relied upon. The Tribunal found that there was no evidence of the nature of a mental impairment such as to enable them to decide that there was a well-recognised mental illness and, on that basis rejected the disability discrimination claim. The Court of Session allowed Mr Millar's appeal from the EAT's rejection of his appeal against the Tribunal's decision on the basis that physical impairment may be established without reference to causation and without reference to any well-recognised illness and that the Tribunal had erred in failing to make the core finding of fact as to whether or not there was a physical impairment.[35]Lord Penrose said, at paragraphs 23 and 24 of his judgment:
"23 It seems to be clear that physical impairment can be established without reference to causation, and, in particular, without reference to any form of 'illness'. The distinctions focussed in para. 1 of Schedule 1 in the case of mental impairment have no counterpart in the treatment of physical impairment. And it is notorious that many forms of physical impairment result from conditions that cannot be described as 'illness'. Genetic deformity, for example, may not be a manifestation of 'illness' in any sense. A deficit resulting from trauma has its origins in an event that may have required medical intervention. But an amputee, for example, does not have an 'illness'. One would expect it to be sufficient for such a person to point to his or her current physical condition as establishing an impairment before turning to the other requirements of the Act. But where there is an issue as to the nature of the impairment it is a matter of fact whether it is physical or mental in character. If an applicant is to avoid the test in para. 1 of Schedule 1, it is incumbent on the applicant to demonstrate that it is physical in character. It seems highly likely that that will resolve into a question of causation in many cases, to be determined on medical evidence: cf Goodwin v Patent Office. 24 So far as the statute is concerned, that approach seems to me to follow from the structure and terms of para.1. It refers to impairment 'resulting from or consisting of' a mental illness. The paragraph is, primarily, a definition of the term 'mental impairment' for the purposes of the Act. It includes within the scope of mental, as contrasted with physical, impairment manifestations of impairment that result from or consist of mental illness, whether those manifestations are or involve themselves physical elements. In a disputed case, proof that the signs and symptoms relied on by the applicant have physical illness or other physical condition as their cause might normally exclude para. 1. Proof that there was no physical cause or, or explanation for, the signs and symptoms would be an important factor to be taken into account in resolving, as a matter of good sense, on the evidence, whether para.1 applied."
[36]Lord Kingarth said, at paragraph 28:
"28 Given the lack of any clear findings by the tribunal, I agree with your Lordship in the chair that the appeal falls to be allowed. I would only add that if, in the last paragraph of the decision, the tribunal was intending (as counsel for the respondents submitted) to record, inter alia, a finding that the restrictions suffered by the appellant were manifestations of his psychological make-up (as was found in the case of the applicants in Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd ) then I, for my part, would be inclined to agree that nothing in the authorities to which we were referred would suggest that it would have been sensible or reasonable for the tribunal to have decided that the appellant's impairment was other than a mental impairment."
[37]These authorities, viewed together, indicate that:(1) It is not necessary for a claimant to establish the cause of an alleged physical impairment; but(2) Where there is an issue as to the existence of a physical impairment it is open to a respondent to seek to disprove the existence of such impairment, including by seeking to prove that the claimed impairment is not genuine or is a mental and not a physical impairment. The Chairman in this case was correct to say, in paragraph 2 of his judgment, that Hobbs and McNicol established that uncertainty as to the cause of a physical impairment does not prevent a finding of such impairment (if he was restricting his comment to physical impairment); see paragraph 1 of Schedule 1 to the Act; but he did not address the second of the above principles which, in my judgment, are to be derived from the authorities and appears to have been of the view that the evidence of Dr Frank could not be successfully undermined because it was not necessary for the cause of the physical impairment to be established. What he failed to take into account was that the absence of any demonstrable cause or alleged absence of any demonstrable cause for the physical impairment could be regarded as undermining the strength of the assertion that there was a physical impairment and as supporting the Hospice's case that there was not. It is noticeable that, in the last sentence of paragraph 2, the Chairman expressed the ratio of Hobbs as being that uncertainty as to the cause of the physical impairment did not prevent a finding of disability; and as I understand their case the Hospice do not suggest that that assertion is incorrect; but such uncertainty may be regarded as weakening a case based on a physical impairment; and, in my judgment, the Hospice's desire to seek to put forward the case, indicated in Mr Hodgkinson's preliminary views, that there were no physical symptoms such as to amount to an impairment within Section 1 of the Act could not have been said, in the circumstances I have described, as fanciful. Nor could it be said that Mr Hodgkinson's preliminary views did not indicate that there could be any substance in the way in which the Hospice sought to develop that case.[38]There is one other aspect of Mr Hodgkinson's letter to which I need to refer. The Chairman, at paragraph 13, said that in setting out in the letter that the intermittent low back symptoms should not reduce Mrs Howard's ability to carry out normal everyday activities such as lifting, bending and carrying Mr Hodgkinson was falling "straight into the Vicary trap" because he was telling the Tribunal not what the impairment was but what he believed to be the gravity of its effect. Vicary does not establish that a medical expert cannot give evidence that a particular physical or mental condition could not cause a particular limitation on function or a particular symptom of which complaint was made. Vicary establishes that an expert cannot tell the Tribunal whether an impairment has a substantial effect or what is a normal day-to-day activity. It is, as I see it, not established by Vicary that an expert cannot tell the Tribunal what may or may not be the consequences of a condition or how serious or otherwise the consequences of a condition may be.[39]For these reasons the judgment of the Chairman in this case must be set aside. It is not in the circumstances necessary for me to go into the other arguments which I have summarised above. I should, however, say that I do not agree with the argument that the Chairman erred in law in considering delay; if it turns out that Mr Hodgkinson has to be called, I agree with Mr Smith's submission that that is unlikely to add greatly to the length of the hearing; but Mr Smith conceded that it might require an extra day to complete the hearing; and the weight which was given to the factor of delay was a matter for the Chairman. On the other hand it does seem, as I read the judgment, that the Chairman did not give weight to the very substantial potential size of this case and that therein lies another error on the part of the Chairman. However, whether that is or is not so, the appeal must be allowed for the reasons I have set out.